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The Human Needs Report is the Coalition on Human Needs' newsletter
on national policy issues affecting low-income and vulnerable populations.
It is published every other week while Congress is in session.
Article from the May 5 , 2006 edition
of the CHN Human Needs
Report:
Congress Takes a First Look at the President's Line-Item Veto Proposal and Finds it Flawed
Two hearings were held on the proposal to increase the President's authority to reject spending approved by Congress before the House Judiciary Committee's Subcommittee on the Constitution on April 27, and before the Senate Budget Committee on May 2. In both sessions, expert witnesses raised objections that led both Republicans and Democrats to acknowledge flaws in the proposal. Nevertheless, both House and Senate are taking it seriously and some version of the legislation may be marked up in the Senate Budget Committee as early as the week of May 22 (sooner is possible but not likely).
Sweeping New Powers: Identical bills filed in the House (H.R. 4980) and Senate (S. 2381) would confer broad new power to the President to cancel legislation enacted by Congress. While some may have looked favorably on more executive authority as a way to thwart the rampant growth of earmarks, this legislation goes way beyond that purpose. A president would be able to rescind funding for annually appropriated (discretionary) and mandatory (entitlement) programs. The President can choose to suspend funding for 180 days under this legislation, and has the right to keep the suspension in force for the full period even if Congress votes to overturn the veto. If the funding for an annually appropriated program is allowed to remain frozen at the end of a fiscal year, spending authority for the program might end, thereby canceling the program altogether. The President would have great flexibility to propose rescissions (that is, cancellation of spending already approved by Congress). He has up to a year to propose them after Congress enacts spending legislation, can decide whether or not to package one rescission proposal with others, and can resubmit rescission proposals even if they have been previously rejected.
Existing law allows the President to rescind discretionary funding for up to 45 days, but if Congress rejects the rescission, funding must start to flow again. In addition, Congress is under no obligation to act at all on any rescission request. If Congress does not act, the new legislation is allowed to stand.
The new bills dramatically expand the President's authority beyond current law, requiring Congress to vote up or down on the President's rescission proposal within 13 days. If the President packages many rescissions to spending items together, Congress must vote up or down on the whole package, without amendment.
Tax Cuts Spared: While the President would be given expansive new authority to cut or cancel spending, he would be able to do little to snip away at tax cuts. The executive would not be able to touch any tax cut that affected more than 100 people, or even fewer than 100 people, if the tax cut applied equally to all corporations in a particular industry. That is, a tax cut that benefited the two remaining widget manufacturers in the U.S. would be immune from the President's veto pen. The solicitude towards preserving Congress' authority to enact special interest tax cuts is in marked contrast to the willingness to cede authority over spending.
An Unconstitutional Power Grab? In the House subcommittee hearing, attorney Cristina Martin Firvida of the National Women's Law Center raised questions about the constitutionality of the legislation in her testimony. A previous attempt to enact a line item veto was ruled unconstitutional in 1998. Firvida cited the decision: there is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. She argued that granting the President the power to change laws, to impound funding despite Congress' vote to reject the rescission, and to run out the clock on spending authority unconstitutionally cedes that authority to the President.
In the Senate Budget Committee hearing, Senator Robert Byrd (D-WV) claimed that the legislation is anathema to the law-making powers granted to the Congress in Article I of the Constitution, while Senator Kent Conrad (D-ND), ranking member of the Senate Budget Committee, called it
a power grab of stunning proportion as reported in CQ Today on May 4. Budget Committee Chair Judd Gregg (R-NH) agreed that a final bill would reduce the sweep of the bill as now written. He would not allow the President to file the same rescissions repeatedly, and is reportedly interested in eliminating authority for the President to continue to impound funds despite a vote in Congress to reject the President's action.
Whether or not S. 2381 and H. R. 4890 are unconstitutional, they would achieve a massive power shift from Congress to the President. For example, the President proposed eliminating the Commodity Supplemental Food Program (CSFP) in his budget, but the House Agriculture Appropriations Subcommittee has voted to continue the program (see article elsewhere in this issue). If the final version of agriculture appropriations retained funding for CSFP, the President would be able to eliminate those funds, perhaps packaging that cut with rescissions affecting a number of narrow special interest items. Or the President could restrict eligibility for the food packages perhaps denying them to seniors while continuing them for pregnant women and infants. Congress would have to overturn the whole package if it wanted to save CSFP. Even if Congress did so, the President could freeze all or a portion of CSFP funds for 180 days.
The Congressional Budget Office, the Center on Budget and Policy Priorities and other analysts agree that it is unlikely this version of the line item veto will reduce the deficit, because it will not constrain tax cuts and may simply give the President more power to twist congressional arms to achieve his own priorities. While the players and their priorities may change over time, it is an inescapable concern that services needed by low-income, vulnerable people may be particularly at risk for the chopping block in any proposal similar to the legislation before Congress now.
Testimony and Publications cited:
Testimony of Cristina Martin Firvida, National Women's Law Center, http://www.nwlc.org/pdf/MartinFirvidaTestimonyLineItemVetoApr06.pdf
Testimony of Senator Robert C. Byrd, http://budget.senate.gov/republican/hearingarchive/testimonies/2006/2006-05-01Byrd.pdf
Testimony of Acting Director Donald Marron, Congressional Budget Office, http://budget.senate.gov/republican/hearingarchive/testimonies/2006/2006-05-01Marron.pdf
Center on Budget and Policy Priorities analysis by Richard Kogan, http://www.cbpp.org/3-23-06bud.htm
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